Jharkhand High Court
M/S Durga Dal Mill vs Regional Director on 26 August, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 228 of 2005
M/s Durga Dal Mill, Pandra Ranchi .... .... Appellant
Versus
1. Regional Director, Employee State Insurance Corp. Ranchi
2. The Authorized Officer (Dy. Director), E.S.I. Corp. Ranchi
3. The Recovery Officer Employee State Insurance Corp. Ranchi.
.... .... Respondents
------
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
------
For the Appellant : Mr. Shashank Shekhar, Advocate
For the Respondents : Mr. Ashutosh Anand, Advocate
C.A.V. ON 13.06.2022 PRONOUNCED ON 26 / 08 / 2022
1. This appeal has been preferred against the order dated
11.07.2005 passed by the Court of E.S.I., Ranchi in Case No. 04 of 2002
whereby and whereudner, learned Labour Court, Ranchi has held that the
application under Section 75-1 (g) of the Employees State Insurance Act,
1948 (hereinafter referred to as the ESI Act) was barred by limitation. In
the result, the petition dated 28.02.2002 filed by the applicant was
dismissed as not maintainable.
2. The appellant is M/s Durga Dal Mill registered under the
Factories Act and its proprietor is Gopal Prasad Khatan and the license
had been renewed from time to time. On 18.08.1993 this mill was
inspected by the E.S.I. Inspector and he found that six workers where
employed and no inspection report was given.
3. A petition was filed on 28.02.2002 by the applicant/appellant
under Section 75-1 (g) of the Act against the order passed under Section
45A of the Act and the recovery proceeding initiated against the appellant
on the ground that the Proprietor of M/s Durga Oil Mill was Mr. Gopal
Prasad Katurka and not the applicant M/s Durga Dal Mill whose
proprietor was Gopal Prasad Khattan.
4. The main plea of the petitioner is that the appellant has no
concern with M/s Durga Dal Mill and the notice of recovery has been
wrongly issued against the appellant. It is further contended that no notice
was given to the applicant before initiating the recovery proceeding.
5. Learned Court below wrongly presumed that the notices issued
under Section 45(A) of the Act was served when the address mentioned in
the said notices and order was not correct.
6. Under Section 82 (2) of Employees State Insurance Act, 1948
an appeal shall lie to the High Court from an order of an Employees'
Insurance Court if it involves a substantial question of law. In the present
appeal the substantial question of law involved is :
"Whether learned Court below committed an error of law to hold that the
case was barred by limitation u/s 77 (1-A) of the ESI Act ?"
7. Limitation is a mixed question of fact and law. There is no cavil
or dispute that Section 77 (1-A) of the ESI Act inserted by 1989
amendment Act raises a statutory bar of three years to prefer any
application to set aside the order of contribution. The provision reads as
under :
77. Commencement of proceedings.--(1) The proceedings before an
Employees' Insurance Court shall be commenced by application.
(1-A) Every such application shall be made within a period of three years
from the date on which the cause of action arose.
Explanation.--For the purpose of this sub-section,--
(a) the cause of action in respect of a claim for benefit shall not be
deemed to arise unless the insured person or in the case of dependants'
benefit, the dependants of the insured person claims or claim that benefit
in accordance with the regulations made in that behalf within a period of
twelve months after the claim became due or within such further period as
the Employees' Insurance Court may allow on grounds which appear to it
to be reasonable;
[(b) the cause of action in respect of a claim by the Corporation for
recovering contributions (including interest and damages) from the
principal employer shall be deemed to have arisen on the date on which
such claim is made by the Corporation for the first time:
Provided that no claim shall be made by the Corporation after five years
of the period to which the claim relates;
(c) the cause of action in respect of a claim by the principal employer for
recovering contributions from an immediate employer shall not be
deemed to arise till the date by which the evidence of contributions having
been paid is due to be received by the Corporation under the regulations.]
8. Order for payment of contribution by the principal employer
was made on 5.8.98 whereas the application u/s 75 of the E.S.I. Act has
been filed by the applicant on 28.2.2002 i.e. after three years.
9. The main contention of the appellant is that notice under
Section 45(A) were not duly served as mandated under proviso to this
section before the Corporation determined the contribution and passed the
order for payment of it. This plea is based on its case that Appellant
company is a factory situated at Pandra Ranchi registered under factory
Act in the name of M/s Durga Dal Mill and the proprietor of the mill is
Gopal Prasad Khattan. The mill was inspected on 5.8.98 by the Deputy
Director E.S.I but no notice or the order of assessment u/s 45 A of the Act
was ever served on the applicant. On 8.11.99 a certificate proceeding for
recovery of assessed contribution was initiated, but no information was
given to the appellant. In the year 1998, a criminal proceeding was also
instituted against Gopal Prasad Katurka at Patna, but not the appellant
Gopal Prasad Khattan. On 27.7.2001 the then Dy. director visited the
appellant mill at Pandra Ranchi and under the pressure to Rs. 25,000 from
the appellant against the recovery proceedings ESI at Patna.
10. The main plank of the appellant's defence is that M/s Durga
Dal Mill of the appellant Gopal Prasad Khattan and M/s Durga Dal Mill
of Gopal Prasad Kataruka against which the notice was issued, were two
different entities and the notice issued in case of the latter cannot be
regarded as due service of notice against the former.
11. As noted by the learned court below the appellant is just trying
to take advantage of some typographical error appearing in the order
regarding the name of the principal employer and the firm. The address of
both the firms are the same and it has not been claimed that principal
employer Gopal Prasad Khattan and Gopal Prasad Kataruka are two
different individuals with different parentage. Ownership of the firm is
also not disputed. Further, it is rightly argued on behalf of the respondent
that part of the contribution amount of Rs.25,000 is already been paid.
Considering these facts the plea of non-service of notice is not tenable.
12. The question that has been raised lies in the realm of facts and
are not substantial question of law to warrant interference by this court.
The judgment and order of the learned court below is affirmed
and the appeal is dismissed.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 26th August, 2022
AFR / AKT
